In January 2013 Endy Gęsina-Torres was arrested by traffic patrol officers for illegally crossing a street. Posing as an illegal immigrant from Cuba Gęsina-Torres explained that he had entered Poland illegally from Belarus and his documents had been stolen. A court detained the man in the Guarded Centre for Foreigners in Białystok. Gęsina-Torres was gathering information about the operations of the facility using a camera hidden in his watch.
In the oral reasons for the ruling, the court stated that the case hinged on the evaluation of the level of the social harm presented by the offences Mr Gęsina-Torres had allegedly committed. Taking into account all the circumstances of the case the court held that the social harm presented by the alleged offence was not negligible.
In court’s opinion, actions conducted by the journalist violated both the interests of the justice system and the credibility of documents. The court held that the defendant’s acts should not be treated as a part of a journalist sting and the case was not about the freedom of expression. The court held that the “sting” negatively affected the justice system which is the very foundation of a democratic country.
In court’s opinion, the key factor distinguishing a “sting” from legal conduct is the assumption that the party responsible for conducting the sting intends to convince another person to commit an offence. In other words a sting is in fact an incitement to commit an offence. Such characteristics have not been found in Endy Gęsina-Torres’ actions. Moreover, a sting, or a provocation, is allowed only in certain legally specified situations and can be conducted only by certain authorities.
The court, taking into consideration the motives of the defendant as well as the goal he wanted to achieve, decided to refrain from imposing a sentence, considering the punitive payment of a prescribed sum a sufficient method of achieving the goals of the criminal proceedings.
The judgement is not yet final.
